Appeal from the District Court of Hot Springs County The Honorable Robert E. Skar, Judge
The opinion of the court was delivered by: Hill, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
HILL, J., delivers the opinion of the Court; VOIGT, J., files a special concurrence.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] After being found guilty of two counts of first degree sexual abuse of a minor, Monty Sullivan asserts that he was denied the right to a fair trial due to prosecutorial misconduct. We affirm.
[¶2] Sullivan raises one issue before this Court:
Mr. Sullivan was denied his right to a fair trial due to prosecutorial misconduct which occurred when the prosecutor solicited inappropriate testimony from its witness and informed the jury that Mr. Sullivan did not take a polygraph test.
[¶3] In February of 2009, the Wyoming Department of Family Services (DFS) took K.T., a minor child who was then nine years old, to the Child Advocacy Project (CAP) in Casper, Wyoming, to be interviewed.*fn1 During the interview, K.T. revealed that on two separate occasions in her grandmother's bedroom, Sullivan attempted to have sex with her but because it was too painful, K.T. stated that Sullivan anally raped her when she was seven and eight years old. K.T. also revealed that Sullivan made her taste his semen, and that there were occasions when Sullivan made her sit on his lap while he watched pornography on the computer. During one specific instance, K.T. recalled that Sullivan was rubbing K.T.'s private area through her clothes.
[¶4] The Thermopolis Police Department interviewed Sullivan after learning of the CAP interview with K.T. They informed Sullivan of K.T.'s allegations, which he initially denied. Eventually, Sullivan admitted to law enforcement that he had done to K.T. what she alleged him to have done.
[¶5] On February 13, 2009, Sullivan was charged with three counts of sexual abuse of a minor in the first degree in violation of Wyo. Stat. Ann. § 6-2-314(a)(i) (Counts I-III), and one count of sexual abuse of a minor in the second degree, in violation of Wyo. Stat. Ann. § 6-2-315(a)(iv) (Count IV). Counts I and IV were ultimately dismissed, and Sullivan pleaded not guilty at arraignment to Counts II, III, and IV.*fn2
[¶6] Prior to trial, Sullivan filed a motion in limine to preclude fifteen specific sorts of anticipated prosecutorial misconduct, including vouching for the credibility of a witness and commenting on Sullivan's guilt or his failure to take a lie detector test. The court, after a hearing, granted the motion as to any polygraph evidence. Otherwise, the court denied the motion, stating that if "one of those errors does come up, then we'll deal with it at the time."
[¶7] The case went to trial on October 28, 2009. At trial, Chief of Police Mark Nelson testified that after doing a number of "these" cases, the video of K.T.'s interview was "very believable." Chief Nelson also testified that he asked Sullivan about a lie detector test, which elicited a colloquy that included the prosecutor stating to the judge in front of the jury that "one was not taken."
[¶8] After two days of trial, the jury returned a guilty verdict on both charges.*fn3
Sentencing occurred February 18, 2010, wherein the court sentenced Sullivan to the Wyoming State Penitentiary for not less than 20 nor more than 35 years per count, with each to run consecutive. This appeal followed.
[¶9] Where there has been an objection at trial, we review claims of prosecutorial misconduct under a harmless error standard. Harris v. State, 2008 WY 23, ¶ 12, 177 P.3d 1166, 1170 (Wyo. 2008). We typically review allegations of prosecutorial misconduct by reference to the entire record to determine whether or not a defendant's case has been so prejudiced as to deny him a fair trial. Schafer v. State, 2008 WY 149, ¶ 21, 197 P.3d 1247, 1251 (Wyo. 2008) (citing Szymanski v. State, 2007 WY 139, ¶ 27, 166 P.3d 879, 886 (Wyo. 2007)).
[¶10] In addressing a claim of prosecutorial misconduct, this Court focuses on the prejudice suffered by the defendant. Smith v. State, 2009 WY 2, ¶ 26, 199 P.3d 1052, 1059 (Wyo. 2009). This Court has identified that reversal is not warranted unless a reasonable probability exists, absent the error, that an appellant may have enjoyed a more favorable verdict. Trujillo ...